White House Sets Up Court Showdown On Abortion Law

September 27, 2005|By David G. Savage Los Angeles Times

WASHINGTON — Bush administration lawyers asked the Supreme Court on Monday to reinstate the first federal law banning a late-term abortion procedure, arguing that what critics call a "partial-birth" abortion should be outlawed because it is gruesome and is "never medically indicated" as a safer surgical procedure.

The government's appeal asks the court to overturn the decision of a U.S. appeals court in St. Louis, which struck down the federal law as unconstitutional.

It came on the same day the Senate took up the nomination of Judge John Roberts as chief justice of the United States. If, as expected, he is confirmed this week, the Roberts court could put some new limits on abortion during its first term, which begins Monday.

The dispute over this type of abortion -- known medically as intact dilation and extraction -- amounts to a rerun of a case heard five years ago by the Supreme Court, but the outcome this time is in doubt because the makeup of the court is changing.

In 2000, the justices ruled 5-4 to strike down a Nebraska law that made it a crime for a doctor to remove much of a fetus intact during a mid-term abortion. This procedure is used by some doctors who perform abortions in the fifth or sixth month of a pregnancy.

In Nebraska, Dr. Leroy Carhart was the only physician who performed mid-term abortions, and in 1997 he filed a legal challenge to a state law banning "partial birth" abortions, contending that the law was unconstitutional. He testified that procedure was safer than other methods because there was less chance of bleeding and infection. Other medical experts backed up his testimony.

A federal judge in Nebraska, the U.S. Court of Appeals in St. Louis and ultimately the Supreme Court invalidated the state's law in 2000. The Supreme Court opinion said that "substantial medical authority supports" the doctor's claim that banning this procedure "could endanger women's health."

Nonetheless, Congress passed the Partial-Birth Abortion Ban Act in 2003 and made it a federal crime to perform such abortions.

When Carhart sued again, this time challenging the new federal law, he won this year in both the U.S. District Court in Omaha and the 8th U.S. Circuit Court of Appeals in St. Louis. Those judges blocked the federal law from taking effect.